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Exhibit 10.4
JARDEN CORPORATION
RESTRICTED STOCK AWARD AND AMENDMENT
AGREEMENT
This RESTRICTED STOCK AWARD AND AMENDMENT AGREEMENT, dated as of
the 13 th day of
January, 2009 (the " Agreement "), by and between Jarden
Corporation, a Delaware corporation (the " Corporation "),
and James E. Lillie (the " Restricted Stockholder
").
W I T N E S S E T H :
WHEREAS, the Restricted Stockholder is an employee of the
Corporation;
WHEREAS, the Restricted Stockholder entered into the Second
Amended and Restated Employment Agreement, dated as of May 24,
2007 (as amended, the " Employment Agreement "), by and
between the Corporation and the Restricted Stockholder;
WHEREAS, pursuant to the terms of the Employment Agreement, the
Corporation is obligated to grant to the Restricted Stockholder
certain performance based equity awards in the form of restricted
shares of common stock, par value $0.01 per share (the " Common
Stock "), of the Corporation (the " Restricted Stock ")
under the Corporation’s Amended and Restated 2003 Stock
Incentive Plan, as amended (the " Stock Incentive Plan ") or
such other similar stock plan that the Corporation may have in
place, based on the long-term framework for the Corporation adopted
by the Compensation Committee; and
WHEREAS, pursuant to Section 4 of the Employment Agreement,
in the event that the Corporation does not have sufficient shares
pursuant to the Stock Incentive Plan (or such other similar stock
plan that the Corporation may have in place) to grant the number of
shares of Restricted Stock to the Restricted Stockholder as
provided in Section 4 of the Employment Agreement, the
Corporation is obligated to grant to the Restricted Stockholder
such number of shares of Restricted Stock that are available under
the Corporation’s stock incentive plans, and in lieu of any
shares of Restricted Stock not granted (the " Remaining
Stock "), grant to the Restricted Stockholder a compensation
package having performance targets and a value equivalent to the
value of the shares of Remaining Stock not issued to the Restricted
Stockholder; and
WHEREAS, the Corporation does not have sufficient shares
available under the Stock Incentive Plan to fulfill the grant of
40,000 shares of Restricted Stock required to be granted to the
Restricted Stockholder in 2009 as required by Section 4 of the
Employment Agreement; and
WHEREAS, the Restricted Stockholder has agreed to accept the
alternate consideration set forth in this Agreement in lieu of the
Remaining Stock not granted to the Restricted Stockholder due to
the lack of availability of such shares under the Stock Incentive
Plan; and
WHEREAS, the Restricted Stockholder has agreed to use any cash
paid to the Restricted Stockholder in lieu of the Remaining Stock
to purchase Common Stock of the Corporation, and the Compensation
Committee of the Corporation’s Board of Directors
has determined that it would be in the best
interest of the Corporation for the Restricted Stockholder to be
granted cash in lieu of such Remaining Stock and to use such cash
to purchase Common Stock; and
WHEREAS, the Restricted Stockholder has voluntarily agreed to be
paid 7.5% less than his contractual base salary during the
Corporation’s fiscal year 2009; and
WHEREAS, the Corporation is willing to grant the portion of the
Restricted Stock that the Corporation has the shares available to
grant to the Restricted Stockholder as of the date of this
Agreement rather than on May 1, 2009 in exchange for the
covenants and agreements of the Restricted Stockholder hereunder;
and
WHEREAS, the parties hereto desire to enter into this Agreement
on the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, the Corporation and the
Restricted Stockholder hereby agree as follows:
1. Granting of Restricted Shares and Alternate
Consideration in Lieu of Remaining Shares . (a)
Notwithstanding anything to the contrary in the Employment
Agreement, the Corporation hereby agrees immediately to grant to
the Restricted Stockholder, effective as of the date hereof (the "
Date of Grant "), 30,000 restricted shares of Common Stock
(the " Performance Shares "), subject to all of the terms
and conditions of this Agreement, the Employment Agreement and the
Stock Incentive Plan, in partial satisfaction of the
Corporation’s obligation to grant Restricted Stock to the
Restricted Stockholder in 2009 pursuant to Section 4 of the
Employment Agreement. The restrictions on the Performance Shares
shall lapse, and the Performance Shares shall be fully vested, on
the Vesting Date as set forth in Section 2 below.
(b) In lieu of the 10,000 shares of the Remaining Stock that the
Corporation is obligated pursuant to Section 4 of the
Employment Agreement to grant to the Restricted Stockholder in
2009, the Corporation hereby agrees to grant to the Restricted
Stockholder, and the Restricted Stockholder agrees to accept, a
cash payment (the " Alternate Payment "), in an amount equal
to the value of such shares of Remaining Stock not issued to the
Restricted Stockholder, on the Date of Determination (as defined
below). For purposes of determining the amount of the Alternate
Payment, the value of the shares of Remaining Stock not issued to
the Restricted Stockholder shall be determined in good faith by the
Compensation Committee or the Board of Directors, as the case may
be, based on the closing price of the Corporation’s Common
Stock on the New York Stock Exchange (or such other securities
exchange on which the Corporation’s common stock may then be
traded) on the Vesting Date (as defined
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